By Tommy A. Purvis
A vote for “yes” on Proposition 35—also known as the Californians Against Sexual Exploitation (CASE) Act—seems as safe and sane as kittens on the front page of Reddit. Yet, the increasingly controversial proposal has put civil libertarians in between anti-human smuggling advocacy groups and erotic service providers.
On the one hand, the proposition could make a serious dent in providing harsher justice for sex traffickers. But on the other hand, the manner in which Proposition 35 targets sex traffickers, opponents say, could open up a can of free-speech and civil liberty worms.
The ballot proposition that targets sex traffickers has won an endorsement in both the Courage Campaign progressive voter guide, as well the California Republican Party voter guide for the Nov. 6 election. The San Bernardino County Sun also supports the proposition in an editorial—that found the few million dollars needed by each local law enforcement jurisdiction for start-up fees inconsequential—that said “it would be callous and wrong to say such minimal costs are not worth incurring to protect some of the most vulnerable living among us.”
Californians Against Slavery and the Safer California Foundation submitted the CASE Act to the Attorney General’s office in November of last year. An in-depth study of the Ban on Human Trafficking and Sex Slavery initiative by the legislative analyst found it would expand the definition of human trafficking to include the distribution of obscene material depicting minors, even in the cases in which the offender had no contact with the minor depicted. The proposal increases the prison term for the forced trafficking an adult from five to 20 years. The forced trafficking of a child is raised from eight years to a life term.
The CASE Act, if approved by voters, would also collect fines of up to $1.5 million from offenders that would go to nonprofit support services for trafficking victims. It would also require that sex traffickers register as sex offenders. All sex offenders would be required to disclose their Internet accounts for law enforcement monitoring. The nonprofits pushing for the proposition cite a U.S. Justice Department study that finds up to 300,000 children are vulnerable to commercial sexual exploitation. Such “anonymity afforded by many Internet sites has fueled the rapid growth of sex trafficking, making the enticement and trade of women and children easier and less risky than ever before,” one such groups says.
Shockingly, the proposal would prohibit law enforcement from charging sex trafficking victims for prostitution. It also mandates law enforcement to undergo human trafficking training.
Chris Kelly, the founder of the Safer California Foundation is the behind the majority of the funding pushing for the proposition. The Silicon Vally philanthropist and attorney is the former Facebook chief privacy officer has spent at least $2.4 million on the proposal. The California Statewide Law Enforcement Association has contributed half a million dollars. The Sheriff departments in Sacramento, San Diego, and Riverside County have also made contributions toward the effort.
“The Internet has changed the way we live, mostly for the better, but it has given criminals new means to prey on their victims. It became clear to me while working at Facebook that, to build a safer online infrastructure, we need better and enforceable laws to deter online predators,” said Kelly last November when the proposition proposal was submitted to the Attorney General for review.
The CASE Act was built on the work Kelly did for New York’s e-STOP Act, which the Safer California Foundation says has been responsible for the removal of over 25,000 convicted sex offenders from online sites.
The American Civil Liberties Union (ACLU) strongly opposes the proposition—on the grounds of being, among other things, a free-speech issue. The main concerns with the measure is the requirement that registered sex offenders provide online screen names and information about their Internet service providers to law enforcement. The ACLU argues that it is a slippery slope considering that this includes old convictions that have nothing to do with the Internet or children.
The group also finds that “this provision essentially eliminates the ability of registrants to engage in anonymous online speech and imposes a substantial burden whenever a registrant wants to use a new online platform to speech, infringing on registrants’ First Amendment right to free speech.”
The measure could also infringe on “sexual privacy rights.”
The Erotic Service Provider Legal, Educational and Research Project—described on its website as “a diverse community-based erotic service provider led group which seeks to empower the erotic community and advance sexual privacy rights through legal advocacy, education and research”—claims Prop. 35 is problematic for peopel engaged in consensual sex that may or may not involve money transactions.
While the group says “sexual service providers abhor and resist trafficking of all kinds, and support appropriate legislation that would effectively help eliminate it,” it is concerned Prop. 35 will define consensual sex acts as sexual trafficking and open up innocent victims to charges, calling it the “wrong set of laws for the wrong people.”